Edward Sullivan and Carrie Richter,
The Daily Record Newswire
Oregon courts have a long-standing practice of deferring to an agency’s interpretation of its own administrative rule if the interpretation is “plausible” and not “inconsistent with the wording of the rule itself, or with the rule’s context, or with any other source of law.” This type of broad deference is given not only to agencies in interpreting their own rules, but also to local governments when applying their own land-use plans and land-use regulations.
This approach seems to work well, especially in cases of local government interpretations, where the local government is an elected body and presumably can be voted out if its interpretations are viewed by the public as inconsistent with adopted codes.
Agencies, by contrast, are not elected; they are typically run by governor-appointed commissions or boards. Deference to agency interpretations stems from a belief that the agency has knowledge of and will act to further the original intent of its own rules.
Similarly, the federal courts have historically treated federal agency interpretations of statutes and administrative rules with a great deal of deference. Again, this has come under the same premise that so long as the interpretation is not inconsistent with the plain language of the rule, it is entitled to be affirmed.
But a few weeks ago, in Decker v. Northwest Environmental Defense Center, the Supreme Court indicated that a change may be coming soon. In that case, the court ruled 6-1 that runoff from logging roads does not constitute a discharge from a point source that requires a National Pollutant Discharge Elimination System permit under agency rules implementing the Clean Water Act. The decision upholds the EPA’s interpretation of its own regulations.
The Clean Water Act and its implementing regulations require a permit before industry-associated stormwater runoff can be discharged into navigable waters of the United States. The EPA interpreted the regulation to exclude runoff from logging roads.
The Northwest Environmental Defense Center claimed that logging and paper companies — which use logging roads to harvest timber from the Tillamook State Forest — discharged polluted water (as runoff from the roads caused by rainfall), without a permit into the South Fork Trask River and the Little South Fork Kilchis River.
About five months after the Supreme Court took up the case, the EPA amended the rule to expressly exempt logging activities from the NPDES permit requirement. The case was not moot because of logging activities occurring before the rule was changed. A majority of the court found that “the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation.”
Justice Antonin Scalia dissented.
“Enough is enough,” he wrote. “For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of (deferring) to an agency’s interpretation of its own regulations.”
To Scalia, deference is appropriate when agencies, rather than courts, interpret statutes that are implemented by the Legislature. But he also suggests that allowing agencies to interpret their own regulations has the dangerous result of concentrating both the writing and interpretation function in one branch of government.
Scalia concluded his dissent by saying that the fairest handling of the case would find that the discharges came from point sources and were associated with industrial activity.
“It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there,” he wrote.
One might view this result as Scalia furthering an interpretative agenda that he alone may discern the authors’ intent through their plain language. However, he may not be alone. Although Chief Justice John Roberts and Justice Samuel Alito joined the majority in full, their separate concurrence included a footnote signaling that they may be open to reconsidering agency deference, but given the rule amendment and the way the case was argued, this was not the right time to address that question.
The amount of deference that agencies have to interpret their own rules at the federal level remains intact, so far, and the same is true with Oregon agencies. A ruling by the U.S. Supreme Court in a similar case will have no effect on how Oregon courts will review decisions by Oregon agencies.
However, consider that one of the primary legal issues before the Oregon Court of Appeals in the challenge to the Metro urban and rural reserves rules in Barkers Five LLC v. LCDC is how much deference the Land Conservation and Development Commission should get when interpreting its own rules.
The rules, which implement state law, require that urban and rural reserves decisions are made based on a series of factors and the balance of impacts. The question before the court is whether compliance with the factors requires any analysis, including the weighing of alternatives and prioritizing lands or rather a scintilla of evidence suggesting that the factors were considered area by area is sufficient.
Can an agency, as Scalia suggests, enact broad-reaching and vague regulations providing the agency with the maximum amount of interpretive flexibility knowing that it can, in effect, make law through its interpretations without providing any opportunity for notice and comment?
“Blackstone, and our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has ‘agency in passing bad laws’ might operate in the ‘same spirit’ in their interpretation,” Scalia said.
It is highly unlikely that historical references to Blackstone or the House of Lords will be included in the forthcoming Court of Appeals decision in the Barkers Five case, but similar issues are raised.
The authors’ law firm represents Save Helvetia in the Barkers Five case.
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Edward Sullivan and Carrie Richter are owners in the Portland office of Garvey Schubert Barer. They can be reached at 503-228-3939 or at esullivan@gsblaw.com or at crichter@gsblaw.com.
